Court decisions may be lost in translation

French-language court decisions in Quebec are rarely translated into English

A dearth of English-speaking translations of judicial decisions from Quebec suggests that Canada’s legal system may be shortchanged by La Belle Province.

“Decisions rendered in French are rarely translated, so the rest of Canada doesn’t benefit from them even if they are cases of national interest,” says Stéphane Eljarrat, a lawyer in Davies Ward Phillips & Vineberg LLP’s Montreal office.

Cases of national interest embrace a broad spectrum. To begin with, they include all the areas of law that are within Parliament’s law-making authority, including criminal law, constitutional law, and decisions under the Charter of Rights and Freedoms.

I was shocked to discover that the lawyer was totally unaware of the case because it had not been translated into English

By way of making his point, Mr. Eljarrat recalls becoming aware of a pending criminal case in the Supreme Court of Canada in which he had an interest. He contacted the Winnipeg lawyer representing the accused to advise him of the only existing Canadian ruling on the point in issue — an decision of the Quebec Court of Appeal that was decidedly in the appellant’s favour.

“I was shocked to discover that the lawyer was totally unaware of the case because it had not been translated into English,” Mr. Eljarrat says.

As it turned out, the hearing had been scheduled for the week following the lawyers’ conversation. The lawyer asked Mr. Eljarrat to translate the case into French, but he declined, citing a lack of time and a concern that — despite his bilingual fluency — he did not have the qualifications to translate at a level that could be relied on by counsel before the high court.

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“I emailed the lawyer saying I would be happy to explain the decision to him but he told me not to bother because he had converted the reasons to English using Google’s translation software,” Mr. Eljarrat says.

More recently, the Quebec Superior Court, in the Global Fuels case, rendered a Canadian judge’s first interpretation of broadened Criminal Code provisions governing the criminal liability of corporations — a matter of considerable concern throughout the country.

“When the decision came out a few weeks ago, I had a number of lawyers across Canada emailing and asking for the English version of the decision, but it simply wasn’t available,” Mr. Eljarrat says. “And until someone takes it upon themselves to translate it, that won’t change — and even when it does, it will be a non-official version.”

Although some criminal cases are translated from their original French to English by legal publishers, there is no obligation on the Quebec Court of Appeal or other courts in the province to translate decisions from French to English except in very limited circumstances.

Quebec’s language law allows the use of English or French in court and administrative tribunals, allows them to render judgments in English or French as they choose, and provides for the translation of judgments into English or French at the request of a party to a proceeding.

This framework, however, means that most often an official translation is not available from the court or other authorized source, and even unofficial translations are few and far between.

“There are many cases that could be useful that are not being translated,” says Sébastien Grammond, Dean of the Civil Law Section of the University of Ottawa’s Faculty of Law. “Lawyers in common law provinces have a tendency not to search Quebec cases, partly because they assume they’re in French and partly because there’s an attitude that most Quebec cases must be irrelevant because the legal system is totally different than in the English-speaking provinces.”

By contrast, Quebec lawyers routinely access English judgments from other provinces.

“For the most part, Quebec lawyer have a degree of fluency in English that allows them to draw on English-language precedents,” Mr. Grammond says.

Ted Tjaden, National Director of Knowledge Management at McMillan LLP, notes that the case databases most commonly used by lawyers, including a free database of unofficial translations, reveals only 395 translations of French-language decisions from Quebec administrative courts or tribunals.

Writing on the legal blog SLAW, Mr. Tjaden notes that 167 of these decision originate in the Quebec Court of Appeal, 95 in the Quebec Superior Court, 118 in the Court of Quebec, and a smattering from administrative tribunals.

But this having been said, the fact remains that Ontario courts, for example, are no more encouraging of official translations to French than Quebec is of official translations to English.

Ontario legislation parallels Quebec law in providing French-speaking individuals with the right to a proceeding conducted in French. In such a proceedings, a party may have the court translate a judgment rendered in either English or French to the other language.

What that means, of course, is that the even the few French-language judgments rendered in Ontario are not necessarily translated, and it’s unlikely that more than a handful of English judgments are ever translated into French.

The only province that requires publication of any judgments in both official languages is New Brunswick, but only where the proceedings are conducted in both languages or when the judgement deals with a matter of interest or importance to the general public.

Judgments of the Supreme Court of Canada (since 1970) and of the Federal Court of Canada are routinely available in official versions in both languages.